CONNIE BENNETT
v. Docket No. 95-HHR-206
DEPARTMENT OF HEALTH AND HUMAN RESOURCES
Grievant's assertion that the position of telephone operator
offers the same salary as LPN is undisputed. Arguably, working
conditions would be comparable since both positions are within the
hospital. DHHR relies upon the third criteria, that the duties of
telephone operator are not similar to those of LPN, to deny
Grievant the position; however, that interpretation is too
restrictive. The provision requires comparable duties only "to the
extent reasonably practical." Because this statute is protective
of employees who have been injured and wish to return to work, the
fact that the duties of telephone operator significantly differ
from those of LPN cannot be used to deny Grievant the position if
she wishes to accept it.
The facts of this matter are undisputed.
1. Grievant had been employed at Sharpe Hospital for
approximately ten and one-half years, classified as a Licensed
Practical Nurse II, when she was injured while controlling a
combative patient in November 1992. 2. After recuperating three or four days Grievant continued
to work with the injuries until March 25, 1993.
3. Grievant was granted temporary total disability benefits
from Workers' Compensation on March 26, 1993.
4. On May 16, 1993, Grievant began a medical leave without
pay.
5. Effective November 16, 1993, the medical leave of absence
expired and Grievant began a personal leave without pay for medical
reasons.
6. Grievant's temporary total disability benefits expired on
December 6, 1994. An award of ten percent permanent partial
disability was effective the same date.
7. By letter dated April 13, 1995, Hospital Administrator
Michael Todt and Assistant Administrator L.H. Garrison notified
Grievant that the leave of absence could not be continued
indefinitely, and, unless a physician should release her to return
to work, her employment would be terminated effective May 1, 1995.
8. A physician's statement dated May 1, 1995, confirmed that
Grievant remains unable to return to work, and will be permanently
restricted from resuming work as an LPN, due to the injury of
November 19, 1992.
Grievant states that she wishes to return to work either as an
LPN, in a light-duty capacity, or in another position. She stated
that in June or July she applied for, but did not receive, a
position of telephone operator at the Hospital. Grievant opined
that she was capable of fulfilling the duties of telephone operatorand noted that it offered the same wages and benefits as her prior
assignment.
DHHR argues that the termination of Grievant's employment was
proper because she can no longer perform the essential functions of
the position. Further, there are no permanent light-duty LPN
assignments, and no accommodation can be made to guarantee that
Grievant will not suffer further injury as an LPN. It asserts that
the position of telephone operator requires different skills and is
not comparable to that of LPN. In any event, Ann Jennings,
Director of Human Resources Management, stated that the position
had been filled by the reallocation of another employee.
W.Va. Code §23-5A-3(b) addresses this situation in pertinent
part:
It shall be a discriminatory practice . . .
for an employer to fail to reinstate an
employee who has sustained a compensable
injury to the employee's former position of
employment upon demand for such reinstatement
provided that the position is available and
the employee is not disabled from performing
the duties of such position. If the former
position is not available, the employee shall
be reinstated to another comparable position
which is available and which the employee is
capable of performing. A comparable position
for the purposes of this section shall mean a
position which is comparable as to wages,
working conditions, and, to the extent
reasonably practicable, duties to the position
held at the time of the injury. . . . In the
event that neither the former position nor a
comparable position is available, the employee
shall have a right to preferential recall to
any job which the injured employee is capable
of performing which becomes open after the
injured employee notifies the employer that he
or she desired reinstatement. Said right of
preferential recall shall be in effect for one
year from the day the injured employeenotifies the employer that he or she desires
reinstatement. . . .
Even if Grievant were not entitled to the operator position
under the first provision of paragraph (b), she has stated a valid
claim under the second provision which grants an injured employee
preferential recall to any job she is capable of performing after
she notifies the employer that she desires reinstatement. Grievant
stated that she applied for the position of telephone operator in
June or July. This testimony indicates that a vacancy existed and
Grievant's application put DHHR on notice that she wished to be
reinstated. DHHR does not claim that Grievant is incapable of
performing the duties of telephone operator. Therefore, she isentitled to the position.
(See footnote 2)
In addition to the foregoing findings of fact and discussion
it is appropriate to make the following conclusions of law.
1. Because this is a non-disciplinary matter, Grievant must
prove all of the allegations constituting the grievance by a
preponderance of the evidence. Payne v. W. Va. Dept. of Energy,
Docket No. ENGY-88-015 (Nov. 2, 1988).
2. Grievant has proven that under the provisions of W.Va.
Code §23-5A-3(b) she is entitled to the position of telephone
operator.
Accordingly, the grievance is GRANTED and DHHR Ordered to
instate Grievant into the position of telephone operator effective
the date of its posting with all backpay and benefits to which she
is entitled.
February 27, 1996
Footnote: 1 Notwithstanding a specific request by the undersigned,
proposed findings of fact and conclusions of law were not
submitted on Grievant's behalf.
Footnote: 2 Although Grievant's representative mentioned the Americans
with Disabilities at hearing, no specific claims were made under
the provisions of that Act. Further, the Grievance Board has no
jurisdiction over ADA claims. Keatley v. Mingo County Bd. of
Educ., Docket No. 95-29-257 (Sept. 25, 1995).